Quick and Dirty Early Commentary on Lewis v. Clarke Oral Argument

In short, the tribal interests are more likely to prevail than some commentators might want. Overall, the Supreme Court is definitely concerned about the apparent extension of tribal immunity to off-reservation acts by tribal employees but doesn’t seem likely to assert itself into this issue so long as it is characterized as a policy question, perhaps one left for Congress.

The Westfall Act as an analogy. The first question at argument, from Justice Ginsburg, implicated the Westfall Act:

They say it’s the same as if it were federal employee, then you would have the Westfall Act. If it was a state employee, you would have the same regime, and the tribe says, “And we do the same thing.” You can sue in our court just as you could sue in federal court under the Westfall Act — Connecticut court under the Connecticut Act, and you can sue in our court.

Tr. at 4. And Justice Ginsburg asked the same question of the Respondent’s counsel:

wouldn’t that have been the Connecticut law but for its Westfall Act-type — I mean, the Westfall Act changed it. Before that, it was my understanding that the employee, the driver, you could bring an individual suit against the driver. That’s what the law was under the Westfall v. Erwin decision, and then Congress changed it. But before that, you could bring an individual suit.

Id. at 31. The Act addresses suits against the tortious actions of federal employees, providing that the exclusive remedy of plaintiffs is a suit against the US. Federal employees, such as rescue personnel, are protected by this statute in order to ensure they zealously pursue their duties. If Mr. Clarke had been a police officer instead of a casino limo driver, the analogy would have been perfect for tribal interests. If the analogy held fast, then tribal immunity likely would extend easily to a tribal employee like Mr. Clarke as a matter of federal common law. But the analogy isn’t perfect, putting the Court in the position of policy maker, deciding in the shoes of tribal governments (and Congress) whether a limo driver should be protected.

Mr. Katyal’s response:

Certainly before 1959, I think that’s right. But as our brief explains, after Barr v. Mateo, lower court after lower court said the — said that official immunity extends to nondiscretionary functions. And in the Westfall decision, to be sure, Justice Ginsburg, this Court said that it was limited to discretionary functions, but Congress quickly repudiated that and said that the Court got it actually wrong and —

Id. If that’s the case, then tribal interests should breathe a sigh of relief.

Congress’s power and wisdom. In Kiowa and Bay Mills, the Supreme Court deferred to Congress’s wisdom and power under the Indian Commerce Clause and the trust relationship to address the metes and bounds of tribal immunity. Respondent’s counsel argued persuasively that Congress’s power over state immunity is constrained by the Eleventh Amendment, but no such constraint exists for tribal immunity (at least under the Constitution — don’t forget the Treaty Power or the trust relationship). 

Respondent’s counsel made the case for this question to be a policy question reserved for Congress:

MR. KATYAL: Well, I — I think the — the first point is that their argument is so sweeping it extends not just to drivers, it extends to tribal judges, it extends to tribal prosecutors, and, yes, it extends even to drivers of emergency vehicles. The Ninth Circuit and Tenth Circuit amicus brief talks about police and fire and all sorts of tribal things in which you actually would, Justice Alito, for sure, I think, want them to be fearless in saving peoples’ lives and things like that. And, yes, there are times there are rough edges to any immunity doctrine in which you can say, well, in this case how is that policy being served. I mean take this Court’s decision in Imbul v. Packman, which had the, you know, grossest facts imaginable. A — you know, a state prosecutor who’s fabricating evidence, which this Court said unanimously that that person was absolutely immune. *** And here, as long as the person is a tribal employee and as long as — is — and because the State of Connecticut does have a remedy against any sort of concerns, so if they were concerned about your situation about fearless driving, they can do — and negotiate in the compact, as New Mexico has done, for something else and say, look, we want this channeled into State court, we insist that you waive immunity, there are a host of remedies that are available to States in this circumstance and, indeed, Connecticut availed themselves of them in this compact.

Tr. at 48-49. And here:

It does matter absolutely, Justice Sotomayor, in the State context what label you put on it, because if it’s sovereign immunity, Congress can’t abrogate it, they have Eleventh Amendment protections. But that’s not true with respect to tribes; that is, Congress’s power is plenary, whether you call it official immunity or sovereign immunity. And so for that reason, we think the Court should get into it here and — and affirm what the courts have said.

Id. at 45.

Real party in interest. Tribal interests in these and related cases have been saying that the tribe is the real party in interest that will pay the actual damages in the event a tribal employee is sued in their individual capacity, thereby invoking sovereign immunity law and policy interests. Again and again, the Justices seemed nominally supportive of this proposition. Justice Alito:

When — when there is a suit against an entity like the Port Authority of New York and New Jersey and the question is whether that is really a — a suit — whether that is a suit against one of the states and, therefore, subject to sovereign immunity, we would look to see who would pay the judgment. So that’s Mr. Katyal’s argument. Why wouldn’t we do the same — why should we not do the same thing when it is against an employee?

Tr. at 8. Justice Kagan:

But why shouldn’t it be the rule that if the State pays, we should understand it to be a suit against the State.

Id. The Chief Justice:

What about an Edelman v. Jordan type situation? I mean, if you name the individual who’s in charge of disbursing the funds of the tribe and pursue — proceed just against the individual, it’s still going to be regarded as a suit against the sovereign.

Id. at 14. Justice Sotomayor:

Recognizing the broader description of the remedy-sought analysis contained in Maxwell, that if the suit is seeking not just public funds but affects the public administration or requires the tribe to do something, it’s still —

Id. at 15. My sense is that this real party in interest question will be particularly influential to a majority of the Court (but certainly not unanimously).

Official immunity or a “pleading maneuver”?: I’ve argued that Lewis’ counsel sued the individual employee because plaintiff’s attorney missed the tribal statute of limitations or perhaps wanted to seek a larger potential award in state court. The tribe (more or less) did as well. Justice Kennedy accused the tribe of making a “demeaning professional comment.” Tr. at 33. Mr. Katyal’s response:

First of all, we certainly didn’t mean to deride them professionally or otherwise. We’re picking up on this Court’s own language in saying that it’s the substance that controls the forum, which it’s used in many of the immunity cases.

Id. Agreed.

The state-tribal gaming compacting process. Respondent’s counsel noted that the State of Connecticut could have negotiated for a different remedy for persons in the Petitioner’s position, which is what the state did in relation to the Foxwoods Casino, and other states have done with their tribes:

But I — I — Justice Alito, I understand the point, but I think that’s true generally in law; that is, we — we rely on the State to — to make its own prerogatives and choices. So, for example, the State could decide not to have tort claims at all if they wanted to — not just against tribes, but against anyone if they wanted to incentivize businesses in one way or another. I don’t think this Court gets into that. Rather, I think the question, and as our brief shows, State after State have actually done the reverse, Justice Alito. Seventeen different States have compacts that do things like channel this litigation into State courts instead of tribal courts. The New Mexico example at page 53 of our brief is a good example. Indeed, Justice Alito, in Connecticut itself, Foxwood Casino, which is run by the Pequot tribe, has the following statute, quote, “Any person injured through the negligence of any Pequot tribe” — “tribal employee, while acting within the scope of his employment and while operating a motor vehicle, shall have a right of action. The tribe hereby expressly waives its immunity from suit for such claims provided such suit is brought in the courts of the State of Connecticut.” That’s the way to deal with this, which is, if a State’s concerned about — you know, about limit — about not — about tribal courts or anything like that, they can do what many States have done, which is say, hey, if you want to have gaming operations in our State, you’ve got a first say and agree to waive sovereign immunity in State court. That’s not what they did here, and now they’re simply trying to relitigate the terms.

Tr. at 37-38.

The Government’s argument: No one seemed all that happy with the United States’ official immunity position. Justice Alito seemed to think the argument was not before the Court:

So you think it was waived. Was that argument? Waived.

Tr. at 16. He was not the only one. Enough on that.

Immunity for tribal entities: The Chief Justice asked one question that matters greatly in this case but isn’t the question before the Court:

CHIEF JUSTICE ROBERTS: Well, one reason it might be a difficult proposition is that the Court has suggested several times that there is some uneasiness with the doctrine of applying sovereign immunity to tribal entities at all. Does the government have a position on that?

Tr. at 25. The Government’s response:

MS. O’CONNELL: The — well, we think it’s — it’s settled at this point that tribal sovereign immunity is a — is an issue of Federal law, that it applies to commercial activities, including off-reservation commercial activities. The Court suggested in Bay Mills that there may be an exception to tribal sovereign immunity if there were some circumstance in which a — like, a tort victim or a person with no connection to the tribe, which is the Petitioners here, had no remedy for their injuries because of tribal sovereign immunity. We don’t think those circumstances have come to pass here. Of course, there’s a remedy in tribal court — or at least there was. There was a question about whether it’s barred by a statute of limitations. But also this suit, a personal-capacity suit against the driver of the vehicle, is a way that they could potentially recover for their injuries without suing the tribe. But tribal sovereign immunity has — has generally — it is understood to be a matter of Federal law. It arises from the United States’ recognition of Indian tribes. And so because it’s an attribute of sovereignty to have not only sovereign immunity, but official immunity, as a matter of Federal law, tribal employees should be entitled to such an immunity as well.

Id. at 25-26.

Federalism. Justice Alito asked the question whether Connecticut as a matter of state law could actually acknowledge a greater extension of tribal immunity than under federal common law:

Could a State give greater immunity to an Indian tribe than is available under Federal law?

Tr. at 11. Justice Kennedy was not happy with that notion:

And I was going to ask you, you responded to an earlier question and — and indicated that the State could expand the immunity of the Indian tribe. And I was going to ask you, is there any authority for that? That’s — that’s a troublesome concept for me. But, again, I don’t think that’s before us. That’s all going to happen below?

Id. at 17.

Punitive damages. As some Justices did in the Dollar General oral argument, the Chief Justice raised punitive damages (tr. at 7). In Lewis, the Mohegan Tribe bars punitive damages in tribal court, which seemed to concern the Chief Justice. In Dollar General, the Chief Justice and others seemed very concerned about punitive damages being available against the defendant. Today, the other Justices did not pick up on that issue, suggesting that perhaps the limited remedy available to Lewis in tribal court wasn’t a serious concern for the rest of the Court. 

Diplomats. Justice Ginsburg asked my favorite question:

Suppose this — the driver of the vehicle was not working for the — for an Indian tribe, but instead was an employee of a foreign embassy. In — in that case, am I right that the immunity, sovereign immunity, would stop the suit?

Tr. at 12. I’ve been saying tribes’ political status is akin to veterans and diplomats for years in my classes. Now I have something to cite to. 🙂

Number of questions asked. Not that it matters, but some political scientists think that the party receiving the most questions is likely to lose the case. Here is the break down:

Questions for Petitioner’s counsel: 24

Questions for the Government: 16

Questions for Respondent’s counsel: 31

It appears the Respondent faced more questions than the Petitioner, but this was divided argument, so who knows?